Gallagher v. State

• Citation: 906 N.E.2d 272
• Decision Date: 22 May 2009
• Docket Number: No. 15A04-0806-CR-326.,15A04-0806-CR-326.
• Parties: Stephan M. GALLAGHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

906 N.E.2d 272

Stephan M. GALLAGHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 15A04-0806-CR-326.

Court of Appeals of Indiana.

May 22, 2009.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Stephan M. Gallagher was convicted of dealing in a schedule II substance¹ as a Class A felony after a jury trial and was sentenced to thirty years with ten years suspended for an executed sentence of twenty years. He appeals, raising the following restated issues:²

I. Whether the State failed to rebut Gallagher's statutory defense under Indiana Code section 35-48-4-16 that he was only within 1,000 feet of the school for a brief period of time while no children were present at the location;

II. Whether the trial court erred when it admitted the audio recording of the drug buy into evidence because Gallagher believed that the State violated the discovery order when it provided a copy of the recording that was not as clearly audible as the copy introduced at trial and because the recording contained evidence of other bad acts; and

III. Whether the trial court abused its discretion when it instructed the jury regarding the statutory requirements of accomplice liability.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In the fall of 2005, Detective Shane McHenry of the Dearborn County Sheriff's Department had several conversations with Danny Goodpaster regarding whether Goodpaster would be willing to help Detective McHenry in investigating drug-related activity in the county. Detective McHenry and Goodpaster knew each other from prior employment during their high school years. The detective had received information regarding Gallagher, and as he knew that Goodpaster was acquainted with Gallagher because Gallagher lived with Goodpaster's sister, Detective McHenry asked if Goodpaster would attempt to purchase drugs from Gallagher. Goodpaster initially refused, but several weeks later, after he was charged with several offenses, Goodpaster agreed to attempt to buy drugs from Gallagher in exchange for the detective's assurance that he would notify the prosecutor's office about Goodpaster's cooperation.³

Goodpaster spoke with Gallagher on a couple occasions about purchasing drugs from him. At approximately 1:00 a.m., on November 29, 2005, Goodpaster called Gallagher and asked about purchasing drugs. Gallagher agreed to arrange for Goodpaster to buy ten Percocet pills for fifty dollars with Gallagher taking four of the pills as compensation for doing business at such a late hour. Gallagher told Goodpaster that he would be with two women when they met and that they would be traveling in one of the women's car. Gallagher also told Goodpaster that they would meet behind Beyer's Pharmacy in Aurora, Indiana to complete the transaction because this location was near to the source of the pills. This location is within 1,000 feet of St. John's Lutheran School.

After his conversation with Gallagher, Goodpaster called Detective McHenry, who was asleep at his home, and told him about the planned drug transaction. The detective picked up Goodpaster and took him to the police station. While there, Goodpaster was searched and given fifty dollars in buy money and an electronic recording device. At approximately 3:00 a.m., Detective McHenry drove Goodpaster to the area where the transaction was to occur. Goodpaster exited the car and walked to the vehicle that contained Gallagher and the two women. Goodpaster got into the back seat with Gallagher and handed him the money. Gallagher then handed the money to one of the women, who exited the vehicle and walked toward some nearby apartments. After some time, she returned with ten pills wrapped in cellophane. They then discussed that the pills were to be divided between Goodpaster and Gallagher. The women took four pills out of the wrapping and handed the rest to Gallagher, who gave them to Goodpaster. Goodpaster then exited the vehicle and met with Detective McHenry again. Approximately twenty minutes elapsed from the time Goodpaster met Gallagher until when he left with the pills.

The vehicle containing Gallagher and the two women was stopped a few blocks away by a deputy from the Sheriff's Department who was awaiting instruction from Detective McHenry. Gallagher was interviewed by the detective and admitted that he had arranged for Goodpaster to purchase the pills. Later analysis determined that the pills contained oxycodone, a schedule II controlled substance. Gallagher was charged with dealing in a schedule II controlled substance as a Class A felony and conspiracy to commit dealing in a schedule II controlled substance as a Class A felony. A jury trial was held, and Gallagher was found guilty of both charges. At the sentencing hearing, the trial court vacated Gallagher's conviction for conspiracy to commit dealing in a schedule II controlled substance to avoid any double jeopardy problems and sentenced him to thirty years for his remaining conviction with ten years suspended for an executed sentence of twenty years. Gallagher now appeals.

DISCUSSION AND DECISION

I. Statutory Defense

"When reviewing a defense, we apply the same standard of review as that applied to other challenges to the sufficiency of the evidence." Bell v. State, 881 N.E.2d 1080, 1085 (Ind.Ct.App.2008), trans. denied. Therefore, we do not reweigh the evidence or judge the credibility of the witnesses and consider only the evidence supporting the verdict and the reasonable inferences that may be drawn therefrom. Id. at 1085-86.

Indiana Code section 35-48-4-16 states in relevant part:

(a) For an offense under this chapter that requires proof of:

(1) delivery of ... a controlled substance;

....

within one thousand (1,000) feet of school property ... the person charged may assert the defense in subsection (b) or (c).

(b) It is a defense for a person charged under this chapter with an offense that contains an element listed in subsection (a) that:

(1) a person was briefly in, on, or within one thousand (1,000) feet of school property ... and;

(2) no person under eighteen (18) years of age at least three (3) years junior to the person was in, on, or within one thousand (1,000) feet of the school property ... at the time of the offense.

The defenses under this section are defenses of justification, which "`admit that the facts of the crime occurred but contend that the acts were justified.'" Bell, 881 N.E.2d at 1086 (quoting Moon v. State, 823 N.E.2d 710, 716 (Ind.Ct.App.2005), trans. denied). "Indiana has allocated the burden as to these defenses in two steps." Moon, 823 N.E.2d at 716. The defendant must first produce evidence raising the defense. Id. Secondly, the State must negate at least one element of the defense beyond a reasonable doubt. Id.

Gallagher argues that the State failed to rebut his statutory defense under Indiana Code section 35-48-4-16(b). He claims that the State failed to rebut his defense under subsection (b) that no children were present at the school at the time of the drug transaction and that he was only within 1,000 feet of the school for a brief period of time. Both parties seem to agree that the record established that no children were present at or within 1,000 feet of St. John's school at the time of the transaction as it transpired at approximately 3:00 a.m., and St. John's is a day school.

The term "briefly" is not defined by Indiana Code section 35-48-4-16. Undefined words in a statute are usually given their plain, ordinary, and usual meaning. Weideman v. State, 890 N.E.2d 28, 32 (Ind.Ct.App.2008) (citing Ind.Code § 1-1-4-1(c)). "Courts may consult English language dictionaries to ascertain the plain and ordinary meaning of a statutory term." Id. (citing Stratton v. State, 791 N.E.2d 220, 224 (Ind.Ct.App.2003), trans. denied). The word "brief" is relevantly defined as "short in duration, extent, or length," while "briefly" is relevantly defined as "short in time." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 143 (10th ed.1994).

Indiana Code § 35-48-4-1(b)(3)(B) elevates dealing in cocaine or narcotics to a class A felony if the transaction occurs within 1,000 feet of, among other things, school property. The purpose of this statute is to protect children. Similarly, the General Assembly sought fit to provide a defense that the defendant was only briefly within 1,000 feet of school property and no children were present when the transaction took place, thereby lowering the offense to a class B felony, because the reason for the harsher penalty — presence of children or a significant risk thereof — did not exist.

Here, it is uncontroverted that the transaction lasted, at most, for twenty minutes, took place at 3:00 a.m., and took place in a location where no children were present. Convicting Gallagher of a class A felony does not comport with the purpose of the statute. Here, as a matter of law, the transaction was brief and, consequently, the State failed to rebut Gallaher's defense. While under a different set of circumstances, a twenty-minute transaction could fall under the category of a class A felony because of the proximity of children or the potential for contact with youth, that is not the case here. Therefore, we reverse and remand with instructions to enter a conviction for dealing in a schedule II controlled substance as a class B felony and resentence Gallagher accordingly.

II. Discovery Violation

Gallagher argues that the trial court erred when it admitted the audio recording of the drug transaction because the copy sought to be admitted at the trial was of a better quality than the one given to Gallagher. He contends that the copy that was given to him through discovery was inaudible and that he formed his trial strategy around this fact. When the...